Rindge / Fitzwilliam

Residents petition in quarry lawsuit

KEENE — Fitzwilliam residents representing 30 properties in the town filed a motion Friday with the Cheshire County Superior Court to intervene in a civil suit KMO Associations LLC of Fitchburg, Mass., — owned by Aaron E. Olson of Rindge — brought against the town of Fitzwilliam in May.

The residents, many of them abutters of the Webb Hill Quarry owned by the Olson family, allege in their motion that KMO’s interests in reopening the Webb Hill Quarry, located between the residential areas of Webb Hill Road and East Lake Road, could adversely impact homeowners’ property values, as well as their future health and well-being.

“Fitzwilliam homes, home water wells, groundwater aquifers, aquifer recharge areas, surface waters, watersheds, including the pristine Laurel Lake, are vulnerable to mining at the Webb Quarry,” reads the property owners’ motion to intervene. “Mining is not only a threat to Fitzwilliam water quality, it will bring noise, dust and heavy truck traffic to this fine old town and its townspeople.”

Abutter and petitioner Terry Silverman said by phone Monday that 99 properties are within a quarter mile of Webb Hill and 500 of the 1,100 properties that make up the town of Fitzwilliam are within a mile of the quarry. “The citizens realized that if things are happening in court we need to voice our concerns there, as well,” he said.

Abutter and petitioner Wesley Whitham of Webb Hill Road said members of the concerned citizens group — which formed in early 2013 in response to Olson’s interest in reopening the quarry — felt that the town failed to address a number of key issues, including the environmental impact reopening the Webb Hill Quarry could have on nearby properties, in its response to KMO’s lawsuit. He said property owners sought out Attorney Arthur B. Cunningham of Hopkinton to represent them because of his expertise in land use issues and mining.

In addition to the motion filed by Fitzwilliam residents, the town of Fitzwilliam filed a request with the Superior Court last week, asking Judge John C. Kissinger Jr., to bifurcate proceedings, or divide future judicial proceedings into two stages, before the court. The town argues that KMO’s claim for damages for the financial loss incurred in not being permitted to profit from the quarry’s natural resources should be heard as a separate issue, given the “unusual circumstances of this case,” referring to the monetary value of the stone on the property. But in order for such proceedings to take place, the court must first find the town liable.

“KMO alleges that the subject property contains 45 million tons of granite, or 450 million cubic feet, that it intends to mine, and that the property also contains previously mined dimension stone totaling approximately 400,000 tons, which in combination is estimated at ‘many millions of dollars,’” according to the town’s motion to bifurcate proceedings. KMO’s suit states that it seeks to recover damages associated with both types of granite.

Also, in its amended answer to the KMO civil suit, the town seeks costs and attorney’s fees to defend against KMO’s claims and corrects an error it made in its original filing when it referenced 1989 excavation regulations that the town mistakenly believed had been amended in 2003 by the Planning Board. The proposed 2003 changes to the town’s excavation regulations is what Fitzwilliam referenced in its initial response to KMO’s suit, rather than the 1989 regulations which are in effect. “The amendments stated above will not cause any injustice to KMO as they do not substantively change the town’s position, there is sufficient time for KMO to review the changes to the town’s answer and to respond and proceed as it sees fit,” according to the town’s motion to amend its answer.

As of Monday by press time, KMO had not filed a response to the town’s amended answer nor its motion to divide future judicial proceedings into two stages with the Superior Court. KMO has also not filed a response to the residents’ request to intervene in the suit. KMO Attorney Thomas Hanna of Keene did not return messages left Monday seeking comment.

KMO filed suit in May against Fitzwilliam, arguing the town has closed all avenues for the removal of dimension stone previously quarried, as well the restart of commercial mining. In its suit, KMO asks the court to allow for the commercial removal of stone and mining at Webb Hill Quarry or, in the alternative, to award damages for the financial loss incurred from not being able to do so.

KMO’s suit alleges the town prevented previous owners from using the granite at the site — zoned rural and residential — for construction purposes, and that the town’s unwillingness to allow commercial activities at the site contradicts state law, which allows mining activity with a state permit. But, according to Bill Carpenter of the N.H. Department of Resources and Economic Development, the state permitting process is preceded by town approval, something for which KMO has yet to apply.

Abutters have questioned whether or not the stone at the quarry is truly dimension stone or, if what may have been intended to be dimension stone, has broken and been left as abandoned rubble decades ago. In property owners’ motion to intervene in the suit, they write that the quarry is “strewn with rubble and spoil piles. Trees and brush have grown up in and around the piles. ...The rubble has become part of the earth.”

State RSA 12-E defines dimension stone as “rock that is cut, shaped, or selected for use in blocks, slabs, sheets, or other construction units of specified shapes or sizes and used for external or interior parts of buildings, foundations, curbing, flagging, bridges, or revetments, or for other architectural or engineering purposes.”

Further they argue that the stone cannot simply be removed by “plucking” as KMO has suggested, but rather it must be excavated.

Fitzwilliam’s zoning ordinance allows excavations of 10,000 cubic yards or less annually by special exception. The town’s definition of excavation includes, but is not limited to “sand, gravel, rock, soil or construction aggregate produced by quarrying or any other mining activity or such other naturally occurring unconsolidated materials that normally mask the bedrock, the excavation of which is not exclusively regulated by the State of New Hampshire.”

In addition to arguing that Fitzwilliam’s zoning is not in compliance with state law, KMO alleges that 2012 Planning Board Chair Terry Silverman and his wife, then Select Board Chair Susan Silverman, opposed KMO’s quarrying interests as abutters. The couple owns property on East Lake Road in the area of the quarry.

According to the suit, “They both vociferously opposed KMO’s removal of the previously mined dimension stone on the lot and KMO’s reinstitution of mining activity at the Webb Quarry.”

Terry Silverman responded to the allegations by phone Monday, saying that he has recused himself from all official proceedings related specifically to KMO since the summer 2012, when Olson and his wife, Kim Olson, first expressed interest in reopening the Webb Hill Quarry.

According to KMO’s suit, the Webb Hill Quarry was opened in 1849 and mined until approximately 1918. KMO acquired the 121-acre lot that includes the quarry by deed of Elaine A. Olson and Arnold R. Seppala in September 2011.

As KMO’s suit against the town of Fitzwilliam develops in Cheshire County Superior Court, the investment firm is also at the center of an ongoing state investigation that has reportedly cost investors millions of dollars and is tied to one pending lawsuit at the Merrimack Superior Court in Concord. The N.H. Bureau of Securities confirmed its investigation of Olson in April 2012. Kevin Moquin, an auditor at the bureau, said Monday that the bureau’s investigation is ongoing.

Alyssa Dandrea can be reached at 924-7172 ext. 228 or adandrea@ledgertranscript.com. She’s on Twitter at @alyssadandrea.